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Your out of state subpoena in California still has to comply with California law

On the bottom of the SUBP-030 California Judicial Council form there is short, but extremely important disclaimer. It reads:

“Note: This application must be accompanied by the fee specified in Government Code section 70626. A discovery subpoena must be personally served on the deponent in compliance with California law, including Code of Civil Procedure section 1985.”

If you are not a California attorney, you probably don’t know how important Code of Civil Procedure section 1985 is. This statute requires advanced notice to an interested consumer if certain records are being subpoenaed.  The entire list can be viewed here. A few examples include: medical records, banking records, and phone records. Before the issued subpoena is served, the interested witness must be served with the subpoena and with the notice to consumer judicial council form.

Let’s walk through an example. Let’s say I want to subpoena John Doe’s bank accounts at Chase. Pursuant to Code of Civil Procedure section 1985.3, banking records invoke the notice requirement.If I issue the subpoena on March 1, 2017, I must first serve a completed notice to consumer judicial council form along with the issued subpoena and allow John Doe time to object. If John Doe is personally served with the notice and subpoena, he has five day to object. If John Doe is a party, I have the option of serving the notice and subpoena by regular mail or express mail, but that would add 5 and 2 days, respectively, to the time for objection. Of course, if John Doe is not a party, he must be personally served with the completed notice.

Another important point: If you are seeking records directly from the consumer, which you might do in an oral deposition requesting documents, then a notice to consumer is not required, as the subpoena itself serves as notice.  However, if you do an oral deposition requesting documents that requests information implicated by Code of Civil Procedure section 1985 et seq., you will still have to follow the notice requirements of the statute.

If the notice requirements are not complied with, the subpoena is technically not valid, the resulting subpoena response could be excluded, and sanctions may result!

Nothing herein constitutes a warranty, guarantee or prediction of your case.  Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result.